“[T]he General Assembly could not conceivably have intended that robbery, which may involve no force, would support a charge of capital murder, while aggravated robbery, an inherently dangerous crime, would not. Aggravated robbery is still robbery.”
How later courts described this case
- “[T]he General Assembly could not conceivably have intended that robbery, which may involve no force, would support a charge of capital murder, while aggravated robbery, an inherently dangerous crime, would not. Aggravated robbery is still robbery.”
- “The General Assembly could not conceivably have intended that robbery, which may involve no force, would support a charge of capital murder, while aggravated robbery, an inherently dangerous crime, would not.”
Written by the judges who cited it.
The opinion
Richard B. Adkisson, Chief Justice, dissenting. The maj ority have held that the trial court commi tted prej udicial error by failing to let the defense cross-examine a witness, Gilmore, about his leaving town before his scheduled trial on five criminal charges. They conclude that “the defense wanted to ask what deal, if any, had been made for his testimony against Simpson,” thereby proving Gilmore was biased. The record in no way substantiates this conclusion reached by the majority.
Rather, the record reflects that what we have here is an objection by the defense to its not being allowed to cross-examine the witness as to specific acts of felonious misconduct under Rule 608, Uniform Rules of Evidence, § 28-1001 Ark. Stat. Ann., Vol. 3A(Repl. 1979). One of the acts of misconduct with which the defense sought to impeach Gilmore was the charge of Felony Failure to Appear resulting from his leaving town before his scheduled trial.
At the beginning of the hearing on this issue the trial court stated that the hearing was on defense counsel’s motion “to inquire of Carl Gilmore as to whether or not he is guilty of having committed certain criminal offenses.” The entire proceeding and conversation centered on this issue. The trial court ruled on the issue at page 805 of the record by stating:
You can attack his general credibility as a witness by showing evidence of previous convictions under Rule 609. Now, that’s questionable. But, under 608 (b) in order to go into specific instances of conduct you must show specific instances of conduct which would be the type of conduct to go to the truthfulness or untruthfulness. The mere fact that somebody may have been guilty of a drug offense or of an assault and battery or even of a murder does not go to the question of truthfulness or untruthfulness.
Later, the court further stated in regard to this issue:
. . . During the time that [Gilmore] was under cross-examination the defense counsel wanted to ask him certain questions on cross-examination and I refused to let him do that. And the questions as I understand it were to go to his credibility.
After the jury had returned a verdict of guilty but before it fixed the punishment, the defense apparently asked that the record be kept open for purposes of making a proffer of proof regarding this issue. In the hearing that followed there was no indication that the ground for objection was other than was originally presented.
The issue of bias was not raised. It is obvious from reading the record in this case that the trial judge could not have understood that appellant sought to prove bias by cross-examining Gilmore about leaving the state. Appellant never mentioned bias in the trial court, but if so, this fact should be set out in the majority opinion. We do not have a plain error rule in this state except for certain limited exceptions not applicable here. Wicks v. State, 270 Ark. 781 , 606 S.W. 2d 366 (1980); Singleton v. State, 274 Ark. 126 , 623 S.W. 2d 180 (1981).
An objection is not sufficient unless it specifically states the grounds relied on so that the ruling may be made understandingly and the objection obviated if possible. General conversation which merely mentions the word “credibility” as the basis for an objection is not sufficient. . This Court has consistently held that in order to preserve an objection for review on appeal it is necessary that the objection at trial be sufficiently specific to apprise the trial court of its basis. Wicks, supra; Turkey Express v. Skelton Motor Co., 246 Ark. 739 , 439 S.W. 2d 923 (1969); Goodwin v. State, 263 Ark. 856 , 568 S.W. 2d 3 (1978); Cf. Rules 46 and 51 Ark. Rules Civ. Proc., Vol. 3A (Repl. 1979); Rule 13, Uniform Rules for Cir. & Chan. Courts, Ark. Stat. Ann., Vol. 3A (Supp. 1981).
I am hereby authorized to state that Hays, J., joins me in this dissent.